Legalization’s Opponents

In 1911, after years of scandal and high-profile corruption trials, California voters overwhelmingly approved one of the most rigorous ballot initiative laws in the country. The idea was to allow voters to bypass state lawmakers when they were too timid, cowed, or corrupt to act on the voters’ behalf. Almost a century later, the process is still relatively simple and accessible. Any group or individual can write an initiative and submit it with a $200 fee to the state attorney general’s office. After the initiative’s fiscal cost was analyzed, the signature gathering began. If the authors didn’t have access to a large group of well-organized volunteers, signature gatherers could be easily hired at a price. For about $1 million, a professional company would send paid staffers to shopping malls, commercial districts, and public transportation hubs to collect roughly 440,000 signatures of registered voters required to qualify the initiative for the California ballot. And if the initiative won 50 percent of the vote on Election Day, it became law.

That form of direct democracy has given California voters a powerful tool to shape their state and influence others. For example, Californians ignited a nationwide movement toward property tax relief with the passage of Proposition 13 in 1978. Citizens have bypassed the state legislature to make laws on tobacco tax, term limits, casinos, wildlife protection, gay marriage and, of course, medical marijuana.

Oaksterdam University founder and dispensary owner Richard Lee took the lead on legalization in 2009. He coauthored the legislation and put up more than $800,000 of his own money to collect the qualifying signatures. Lee’s initiative was aimed at swing voters — those who supported medical cannabis, for example, but might not want a dispensary in their neighborhood. If approved in November, the Regulate, Control, and Tax Cannabis Act of 2010 — Proposition 19 — would allow anyone 21 or older to possess or transport up to an ounce of cannabis. It would allow the taxation of the cultivation and retail sales of cannabis. Any store that so chose could sell up to an ounce, and it would be legal to cultivate as much cannabis as you could grow in a 25-foot-square area.

The initiative would create new laws regarding marijuana use. It would be illegal to smoke marijuana in public or in the presence of a minor. Cities and counties could ban the sale of cannabis, though not its possession. And existing prohibitions against the operation of vehicles, boats, and aircraft while under the influence of marijuana would remain in place. The new law would not replace Proposition 215. Patients could still possess or cultivate marijuana according to local limits. In Oakland, for example, a patient could grow 72 plants indoors, but non-patients would be restricted to what they could fit in a five-by-five area, or roughly 24 plants.

With the public’s growing acceptance of cannabis, Lee decided 2010 was as good an election year as any when he decided to back the first state legalization effort in California since the 1970s.

“We see a lot of things making it right for this time,” Lee said. “The budget crisis here in California, the violence in Mexico, the economy continuing to decline, the polls — all suggest that this may be the time to do it.” He may be right. Masterson & Wright, the company that Lee hired to collect signatures, racked up more than 700,000 — 39 percent more than the required minimum. Proponents set a goal of raising $10 million for the campaign, about five times more than opponents were expecting to spend.

In another sign that the cannabis industry was taking a corporate mentality, Lee hired campaign consultant Chris Lehane as a strategist. Lehane had worked for mainstream Democrats like Bill Clinton, John Kerry, and Gray Davis. But prominent dispensary owners, cannabis attorneys and nonprofit advocacy groups were reluctant to endorse the initiative. They criticized the way it was written, and some pressured Lee to hold off until 2012, when more voters, especially younger ones, would turn out to vote for president. Ultimately, however, the industry rallied around the initiative. The three major nonprofits that advocate for legalization of cannabis were the first to come around. They were primarily concerned about the timing, but once the petitions were certified they threw in their full support.

The California initiative shifted attention away from lobbying efforts in Washington. The Marijuana Policy Project (MPP), based in Washington, D.C., focuses its lobbying efforts in the beltway, and its political action committee has contributed to numerous federal elections. But Aaron Houston, MPP’s chief lobbyist, said the energy for legalization is occurring at the state level. “We are becoming more decentralized,” he said. “The sheer volume of supporters dictates a top-down strategy would not work at this point. Decentralization is a critical component to tactical success. “Drug Policy Alliance executive director Ethan Nadelmann was also a staunch supporter of the California initiative. “Now it’s time again for California to lead the way in ending the follies of marijuana prohibition in favor of a responsible policy of tax and regulation,” he said.

NORML executive director Alan St. Pierre said his organization was solidly behind the initiative. “We’ll launch a major effort in which we’ll try to redirect every dollar out there to California to help with the legalization effort this year,” St. Pierre vowed.

But strong resistance to Lee’s initiative endured, and much of it was coming from close allies. One of the earliest critics was Steve DeAngelo, the high-profile CEO of Oakland’s Harborside Health Center dispensary, which has been featured in dozens of national television, radio, and print stories. With its upscale, bank-like interior, Harborside had been held up as a model for community orientation, professionalism and its work with local governments. It claimed to have the widest selection of cannabis strains and was at the forefront of product testing for contaminants.

DeAngelo has touted his history as a cannabis activist. He helped organize the Proposition 59 campaign in 1998, which legalized medical cannabis in Washington, DC, and he is a cofounder and charter member of the ASA. And despite his long braids, trademark fedora and latter-day-hippie appearance, DeAngelo is an astute businessman. In 1991, he founded Ecolution, which sells hemp products to retail stores throughout the United States and in 21 other countries. In 2006 he opened Harborside, which he claims has 48,000 members and serves roughly 800 people a day.

Offering its members free appointments with an on-site neuropath, acupuncturist and chiropractor, Harborside grosses about $20 million a year. The dispensary pays $2 million annually in state sales tax and another $360,000 for Oakland’s local dispensary levy. DeAngelo and his partner, Dave Wedding Dress, expanded their dispensary operation to San Jose in 2010.

DeAngelo was initially outspoken in his opposition to Lee’s legalization initiative. At the 2009 NORML convention in San Francisco, he denounced the legalization effort as a reckless flirtation that could severely damage the entire medical cannabis industry. After speaking with neighbors, police, and city officials, DeAngelo said he concluded they were opposed to legalization.

“Their discomfort springs from the lack of any positive image of what legal cannabis distribution would look like,” he said. Californians envisioned “armed dealers setting up shop and slinging weed on corners of their suburban neighborhoods.” They feared their children would be brainwashed by “glossy ads for reefer in the style of Anheuser-Busch.”

To support his position, DeAngelo quoted a Fortune magazine article in which writer Roger Parloff advocated a slow approach to legalization. Parloff argued the entire cannabis industry was at risk if California’s dispensaries failed. “If [proponents] succeed, they’ll convince the fence sitter and lead the way to a nationwide metamorphosis.

“If they fail, the backlash will be savage,” DeAngelo read from the article. “If communities cannot adequately regulate the dispensaries, they’ll descend into unsightly, youth-seducing, crime-ridden playgrounds for gang-bangers, and this flirtation with legalization will conclude the way the last one did: with a swift and merciless swing of the pendulum.”

Although most California communities have been managing dispensaries without such hellish consequences, DeAngelo told the gathering that Parloff’s speculations were valid. “As one of those with his head on the chopping block, I am very concerned about that pendulum,” he said. “We must embrace the not-for-profit, community-service model of cannabis distribution. When you boil down the fear of our 25 percent of swing voters, I would submit that it likely comes down to them not wanting us as a society to make the same mistakes with cannabis that we made with alcohol and tobacco: glamorization, excessive advertising driving inappropriate use, profit-making corporations enticing their children into lifetimes of dependency.”

Instead, DeAngelo recommended waiting five to six years while the medical cannabis industry took hold in more states and established a solid track record. “Across the nation, thousands of not-for-profit, community-service dispensaries have created a positive model of cannabis distribution,” he told his audience. He also suggested the legalization would occur organically. “At dispensaries all across the country, we will stop asking for medical cannabis identification and simply ask for adult identification. We will flip the switch at the dispensary door, and all adult Americans will have what hundreds of thousands of Californians now have — free, safe, and affordable access to cannabis.” But once the California Attorney General qualified the initiative for the 2010 state ballot, DeAngelo reluctantly offered his support to the campaign and even promised to contribute $1,000 to the effort.

Other allies were also grumbling openly about the initiative. One was attorney Robert Raich, legal counsel to California’s earliest dispensary owners. Raich’s credentials are extensive. He has lectured widely on the regulation of medical cannabis and was a member of the California Attorney General’s Medical Marijuana Task Force, which crafted much of the language for SB 420. He also worked on the only two medical cannabis cases argued before the Supreme Court: United States v. Oakland Cannabis Buyers Cooperative in 2001 and Gonzalez v. Raich (no relation) in 2005. In addition, Raich had taught medical cannabis awareness classes to Oakland Police Department cadets.

Although Raich taught at Oaksterdam University, he disagreed with Richard Lee when it came to Control and Tax 2010. Raich was wary of the new restrictions the initiative would create, such as prohibiting use in front of minors or in public places, outlawing sales to anyone between the ages of 18 and 20, and restricting growing space to 25 square feet, which Raich said was ridiculously inadequate.

Raich asked Lee to make changes to the initiative, but Lee refused. Raich suspected campaign consultants had given Lee poor advice and convinced him he needed to curry the votes of soccer moms, who theoretically feel more comfortable voting for tight restrictions. “In fact, when I look through the eyes of someone who is unfamiliar with cannabis, I see so many restrictions that we might actually lose votes. The voter is going to say, ‘This guy is a proponent who knows more about weed than anybody, and he wants so many restrictions that it must really be a dangerous drug.'”

Raich said it was foolish to make so many concessions to a perceived public resistance to legalization. Voters are typically driven by emotion rather than logic. Most people don’t read the ballot text of a new law in detail, Raich said. “This initiative will be decided based on two words, ‘legalize’ and ‘marijuana,’ yes or no? That’s all people really care about, all they’ll know about, all they want to know about.”

Often called the spiritual father of medical marijuana movement, Dennis Peron coauthored Proposition 215. He said Lee’s initiative was so restrictive it was nothing less than a declaration of war. Peron has always favored a community-based vision of medical marijuana in which the drug was dispensed at affordable prices with as little commerce as possible. He bristled at the thought of the medical marijuana movement turning into a business driven by the bottom line. “Taxes?” he erupted in a San Francisco café in December 2009. “We shouldn’t pay taxes. The government should pay us reparations for all the lives they’ve ruined.”

Peron even recorded a video denouncing the initiative and posted it on YouTube. In it, he took aim at what he called the excessive restrictions in Lee’s initiative. “To deny 18-year-olds is wrong. They can go buy cigarettes, they can go kill for our country. . .” Peron said in his rapid-fire style. “I started smoking when I was 18, and it saved my life. Also, a five-by-five area is too small. We need the Central Valley.”

Peron criticized Lee for leading the medical marijuana movement into the cold world of finance. “We’ve given too much power to one man, to a person who has no sense of destiny, no sense of what it is to have power. He has money, and he equates that money with power,” Peron said. “My power came from my heart and my friends. This is a movement about people, not money.”

Peron said it was awkward to speak out against the initiative, but he felt he had no choice. “I don’t like war, and I hate civil war. War with my friends is wrong,” Peron said into the camera. “But I’m prepared for war. To sit back and do nothing would be wrong.” Although Lee described Peron at a 2008 NORML conference as one of his heroes and the godfather of the medical marijuana industry, the split between the two men over the initiative was such that Peron stopped teaching at Oaksterdam.

Don Duncan, the California director of Americans for Safe Access, declined to take a position on the initiative because the organization’s charter prevented it from endorsing political campaigns. But he said medical cannabis patients must be included in the dialog as more states considered legalizing adult use. “Medical marijuana is not a means to an end; it’s a means unto itself. What’s not useful is for people to pretend to be medical marijuana advocates when they have a different agenda in mind. There’s no integrity to that,” Duncan said. “What could happen is it could be hurtful to our cause because it will be seen as a bait and switch. Advocacy for medical use and patients’ rights should not be seen as a stalking-horse. It’s important that activists identify which side they’re on and stick to their message.”

Lee brushed off the criticisms. As in other rights movements, Lee said, many see no need to keep pushing once they become comfortable. “I’ve seen a lot of people in the industry who have a monopoly. They’re making millions of dollars, and they see legalization as a threat,” Lee said. “There’s a comfort level with the way things are. They’re making lots of money; they have lots of good bud, so why rock the boat?”

In the meanwhile, though, a coalition of law enforcement agencies planned to challenge Lee’s initiative, and their testimony hinted at their larger strategy. They will likely argue legalization would have a devastating effect on the state’s public health and safety. There would be a significant rise in organized crime, violence, cancer, addiction, dropout rates and traffic deaths. Although those arguments were likely to carry weight, they seemed to ignore the fact that marijuana has been widely used in the state for decades, and they had failed to produce statistics to back up their claims. For example, there were 1,489 alcohol-related traffic fatalities in California in 2007, according to the Department of Motor Vehicles (DMV). But the DMV kept no such data on marijuana-related traffic fatalities. Instead, marijuana was included under the general heading of drug fatalities, which numbered 749 that year.

There are conflicting studies on marijuana as a major health threat. For example, the National Institutes of Health’s 2006 study claimed there was next to no risk of cancer, no matter how much or how long marijuana was smoked. But a 2008 study by New Zealand scientists determined that smoking one joint was equivalent to smoking 20 cigarettes; they warned of a pending “epidemic” of lung cancer. Marijuana smoke is on California’s list of chemicals known to the state to cause cancer or reproductive toxicity, but marijuana itself is not. Although most users prefer to smoke marijuana, it can also be ingested through edible goods and vaporizers, which pose no risk to the lungs. Neither marijuana nor marijuana smoke is on the U.S. Department of Public Health and Human Services list of carcinogens. And despite decades of heavy use in the United States, there is no official estimate of health costs associated with marijuana.

Even so, law enforcement agencies remain convinced that marijuana is dangerous. Tall, ruggedly handsome, and easygoing, El Cerrito Police Chief Scott Kirkland was on the board of California Police Chiefs Association and chaired its Medical Marijuana Task Force. Standing in the capitol building hallway, Kirkland broadened his smile, shook his head again, and had only one comment: “Damn politics.” Then he walked away with a group of fellow police chiefs.

Kirkland’s primary reason for opposing legalization was its effect on children and youth. There was already too much marijuana in schools, and since medical marijuana had become legal, the situation had deteriorated. If adult use were legalized, he feared it would grow into an even bigger problem. In California, high school students who turned 18 before graduation could obtain medical cannabis recommendations, and many had become marijuana mules for their underage classmates. “Some of these students turn into de facto high school drug dealers not because they’re prone to it, but just because they turn 18,” Kirkland said. He had received calls from parents who found a bag of weed in the family car after their teenager had been driving it. “The parents want us to come and arrest them, or at least give their kid a scare, and I have to tell them I can’t do it because their son or daughter has a medical marijuana recommendation, and it’s legal for them to have marijuana,” Kirkland said.

Kirkland was worried about medical reports that marijuana use could slow brain development, particularly among male teenagers. Kirkland said he was no expert, but he suspected a correlation between the higher THC content in marijuana and higher rates of learning disabilities among American teenagers. And like many marijuana activists, he was frustrated the Controlled Substances Act had stymied federal spending on research because marijuana was a Schedule I narcotic. He particularly wanted to see more medical research into marijuana’s effect on children. “I could give a rat’s ass about the 50-year-old guy who wants to smoke a joint in his house,” Kirkland said. “If that’s how he gets relief from societal woes, so be it.”

Kirkland also criticized the overall tenor of the media coverage, which he felt favored the cannabis industry. “I’ll talk to a reporter for up to an hour, and when the stories come out, I’ll have one sentence, and Richard Lee will have three paragraphs,” Kirkland said. In 2009, Kirkland sent an editorial to the Sacramento Bee, one of the state’s most respected newspapers, after it ran a pro-legalization piece by Aaron Smith, the policy director for the Marijuana Policy Project, who cited Gettman’s tax revenue projections. Kirkland respectfully challenged Smith’s assertions, but the Bee declined to run his piece, and it finally appeared in the lower-circulation Stanislaus County Insider.

Despite these challenges, Kirkland said he was confident that voters would see through campaign rhetoric and realize that legalizing yet another mind-altering drug was a bad idea. But influencing voters is a difficult task. It requires an understanding of public opinion and its vagaries, an ability to communicate strategically, and a deep commitment to the issue. Kirkland found those qualities in longtime Sacramento lobbyist John Lovell, a former troubleshooter for Gallo Winery.

Lovell’s disheveled, avuncular image belies his reputation as a shrewd political operator. In 2008 he managed the campaign to defeat Proposition 5, which would have required the state to create more drug rehabilitation programs and limited the court’s authority to sentence nonviolent drug offenders to prison.

Initially, Proposition 5 had a great deal of momentum. Early polling showed voters favored the proposition two to one, and wealthy pro-legalization tycoons contributed generously, including $1.4 million each from international financier George Soros and Jacob Goldfield, the former chief investment of Soros Fund Management. Proponents ultimately outspent the opposition $7.6 million to $2.9 million. But that was before Lovell went to work. He landed endorsements from U.S. senators Dianne Feinstein and Barbara Boxer as well as California attorney general Jerry Brown, actor Martin Sheen, and farm worker icon Dolores Huerta. Lovell’s campaign hammered home the view that the initiative was a “get-out-of-jail-free card” for drug offenders. “All defendants had to do was claim drug addiction, and the prosecutor would have the burden of proving otherwise. Voters didn’t like that,” Lovell said. “We won the election with 59 percent of voters saying no compared to 40 percent saying yes. It was a remarkable turnaround.”

Two years after the defeat of Proposition 5, law enforcement again turned to Lovell. Several police associations, including the California Police Chiefs Association and the California Narcotics Officers Association, were working with Lovell to shape their campaign against 19. Lovell said he was confident the initiative would fail. There were a number of flaws in its text that he said would be relatively easy to exploit. “I think the authors made the classic blunder of having too many proponents in the room when they wrote it, and there was no one to thoroughly challenge some of its provisions.”

Lovell said the initiative gave a false impression of how much tax revenue it would raise and allowed cities and counties to regulate the cannabis industry as each saw fit. “It will create 500 marijuana nations, and it will be one big race to the bottom,” Lovell said. “Mexican and Asian drug cartels won’t disappear; they’ll just set up shop in friendly cities and towns and continue to operate with impunity.” The rules would change every time law enforcement officials crossed a city or county line in what Lovell described as a “confusing crazy quilt of laws, regulations, and policies.” The initiative would also create problems for businesses, which couldn’t fire anyone for testing positive for marijuana. Instead, employers would have to demonstrate that the worker was impaired. Because federal contracts include a drug-free clause, California businesses could also miss out on lucrative opportunities.

Both campaigns were planning no-holds-barred strategies. Polls favored legalization, but that was no guarantee. One thing was certain: The campaign would be watched more closely than any other state initiative in the country. Its passage would send a clear signal to government officials and politicians throughout the country.

The initiative’s success would also mean a great deal of change for the medical marijuana industry. Smaller dispensaries, which have had the market entirely to themselves for years, could face stiff competition from well-funded and business-savvy investors. Unencumbered by Proposition 215’s not-for-profit requirements, they could capture market share by undercutting prices, launching aggressive advertising campaigns or using political influence to squeeze small operators out of the marketplace. Franchises could eventually spread to Oregon, Washington and Nevada, which were also developing campaigns to legalize adult use.

Even if the initiative failed, the marijuana industry would continue to grow at a rapid clip. In Colorado the industry was quickly catching up to California in the number of dispensaries, political sophistication, and support infrastructure. Maine, Rhode Island, New Mexico and Montana were developing successful dispensary models. Insiders joked about the rise of “Starbuds” — a fictional corporate-styled dispensary chain with identical interior designs, uniformed budtenders, and standardized customer greetings –but that reality might not be far off.

No matter what the vehicle — legalization or the continued growth of the medical marijuana industry — the marijuana business would continue to change rapidly. And in the misty, forested hills of northern California, longtime marijuana growing communities were watching the new developments anxiously — and wondering whether their way of life would soon be finished.

This article appears in Legalization’s Opponents.